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United States v. Gilmore

United States Court of Appeals, Ninth Circuit

April 5, 2018

United States of America, Plaintiff-Appellee,
v.
Russell Eugene Gilmore, Defendant-Appellant. United States of America, Plaintiff-Appellee,
v.
Richard David Hemsley, Defendant-Appellant.

          Argued and Submitted March 16, 2018 San Francisco, California

          Appeal from the United States District Court for the Eastern District of California Garland E. Burrell, Jr., Senior District Judge, Presiding D.C. No. 2:13-cr-00300-GEB-2, 2:13-cr-00300-GEB-3

          Sean Riordan (argued) and Ann C. McClintock, Assistant Federal Defenders; Heather E. Williams, Federal Defender; Office of the Federal Public Defender, Sacramento, California, for Defendant-Appellant Russell Eugene Gilmore.

          Sandra Gillies (argued), Woodland, California, for Defendant-Appellant Richard David Hemsley.

          Gregory T. Broderick (argued) and Samuel Wong, Assistant United States Attorneys; Camil A. Skipper, Appellate Chief; United States Attorney's Office, Sacramento, California; for Plaintiff-Appellee.

          Before: Richard A. Paez and Sandra S. Ikuta, Circuit Judges, and Lynn S. Adelman, [*] District Judge.

         SUMMARY [**]

         Criminal Law

         The panel affirmed the district court's denial of a motion to enjoin the government's prosecution of two defendants charged with conspiracy to manufacture marijuana plants and manufacture of marijuana plants.

         The panel held that a congressional prohibition on the Department of Justice's use of appropriated funds to prevent states from implementing state laws that authorize the use, distribution, possession, or cultivation of medical marijuana does not limit the government's ability to enforce federal drug laws on federal land.

          OPINION

          ADELMAN, District Judge:

         Congress has barred the Department of Justice from using appropriated funds "to prevent [certain States, including California] from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana." See Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, § 538, 128 Stat. 2130, 2217 (2014) (hereafter "§ 538"); Consolidated Appropriations Act, 2018, § 538 (2018) (extending § 538 through September 30, 2018). In United States v. McIntosh, 833 F.3d 1163, 1177 (9th Cir. 2016), we held that defendants may seek to enjoin the expenditure of such funds on federal drug trafficking prosecutions of individuals who engaged in conduct authorized by state medical marijuana laws and who fully complied with such laws.

         In this case, the district court refused to issue an injunction because the subject marijuana grow operation occurred on federal land under the control of the Bureau of Land Management ("BLM"). We affirm. The restrictions imposed by ...


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